Allahabad High Court
Shanti Swaroop Sharma vs Rajesh Kumar Saxena on 7 February, 2017
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 2 AFR Case :- WRIT - A No. - 5449 of 2017 Petitioner :- Shanti Swaroop Sharma Respondent :- Rajesh Kumar Saxena Counsel for Petitioner :- Salil Kumar Rai Counsel for Respondent :- Yogesh Kumar Saxena Hon'ble Manoj Misra, J.
Heard learned counsel for the petitioner; Sri Yogesh Kumar Saxena for the plaintiff-respondent and perused the record.
The landlord-respondent filed an application for release under Section 21(1)(a) of the U.P. Act No.13 of 1972 for a mixed purpose in the sense that the accommodation was required to enable his unemployed son to settle in district Pilibhit for doing business of supply of medical instruments to nursing homes, etc. running in district Pilibhit. The tenant-petitioner was using the accommodation for residential purpose. The release application was allowed by the Prescribed Authority but was rejected by the appellate court by placing reliance on clause (ii) of the third proviso to Section 21(1) of the U.P. Act No.13 of 1972 which places an embargo on release of residential building for commercial purpose. Against the appellate court's order dated 20.12.2011, Writ-A No.13806 of 2012 was filed by the landlord-respondent which came to be allowed by order dated 15.09.2015 on the ground that the dominant purpose of the need would have to be determined to ascertain whether release was sought for residential or commercial purpose. Accordingly, the matter was remanded to the appellate court to consider the matter afresh in the light of the observations made in the order of remand. In the order of remand it was specifically observed that the appellate court shall specifically consider the nature and extent of the accommodation required for residential need set up by the landlord, in case of shifting to District Pilibhit for establishing medical instruments business, and, simultaneously, shall consider the nature and extent of the accommodation required for opening an office and a godown for storing medical instruments. The order of remand further provided that after consideration of these aspects, the suitability of the accommodation for the need of residence and business set up by the landlord should also be considered and, in case the Appellate Authority comes to the conclusion that the Prescribed Authority has not considered all these aspects of the matter, it would record its own finding, as per the above direction, instead of remitting the matter back to the trial court. It was further provided that fresh finding on bona fide need and comparative hardship should be returned by the appellate authority without being influenced by any of the observations made in the order of remand.
Pursuant to the order dated 15.09.2015 passed in Writ-A No.13806 of 2012, the appellate court examined the matter afresh and took on record affidavits from landlord as well as tenant. On the basis of the material brought on record including the maps attached with the affidavits the court below came to the conclusion that the house in question had six rooms, which were marked by letters A, B, C, D, E and F in the map (which was made part of the impugned order); a big court yard H -16'6" x 26'8" (feet/inch); an open courtyard G; an open platform adjacent to main gate; a kitchen C-2; and a verandah C-1- 9'5" wide, besides toilet and bathroom. The court recorded a finding that a room abutting the main gate with dimensions 16.1 x 7.11 feet, looking to its situation, would meet the landlord's requirement for an office. Rest three rooms along the southern wall behind the room proposed for office would meet the requirement for residence of the son of the landlord and the courtyard H could be used for godown. The court found that nothing was brought on the record to indicate that the landlord's son was not unemployed and considering that in the present era unemployment of youth is one of the most painful problems in the country, the need of the landlord to settle his unemployed son at Pilibhit was found genuine and bonafide. On the question of comparative hardship, the court came to the conclusion that the tenant was aged 82 years and had a daughter to look after; therefore, to balance the need of the parties, it considered part release of the accommodation in dispute and, vide impugned order dated 28.11.2016, released a portion of the accommodation in favour of the landlord, which satisfied his need, and left the remaining portion with the defendant along with certain facilities which were left to be shared by both the parties.
The learned counsel for the petitioner has assailed the order passed by the appellate court on the ground that while passing the release order, the court below has not specifically disclosed as to what was the dominant purpose of the release application even though, under the order of remand, the court below was required to consider whether the dominant purpose was commercial or residential. It has been submitted that if the dominant purpose was commercial, then the release application was barred by clause (ii) of the third proviso to Section 21(1) of the Act. It has also been urged that the landlord is a resident of Allahabad therefore setting up an establishment by his son at Pilibhit, ex facie, did not appear bona fide. It has further been submitted that the suitability of the accommodation for the purpose of business has not been properly discussed by the appellate court because the tenant in his affidavit had contended that the approach road was not wide enough which rendered the premises unsuitable for business.
The learned counsel for the petitioner further argued that the question of part release of the accommodation would only arise if the comparative hardship is found in favour of the landlord but, in the present case, the court below has found comparative hardship balanced. Under the circumstances, it had no choice but to dismiss the application. It has also been submitted that the accommodation left with the tenant is far too small than what has been released in favour of the landlord.
Sri Yogesh Kumar Saxena, who appears for the respondent, has supported the judgment passed by the appellate court.
I have given thoughtful consideration to the submissions of the learned counsel for the parties.
In so far as the submission that the court below has not appropriately discussed and found that the dominant purpose of release was residential is concerned, this Court is of the view that no doubt the judgment of the court below is not very happily worded but that by itself is no ground to set it aside. Because in pith and substance the judgment discloses that from the affidavits brought on record it appeared that a room was required for the purpose of setting up an office and three rooms were required for satisfying the residential need whereas the courtyard was required to satisfy need for a godown. Admittedly, the landlord had no place of residence in district Pilibhit therefore once the need was there to settle in Pilibhit, in connection with occupation, residential need becomes paramount. Further, as the court below found from the affidavits that the extent of accommodation required to satisfy residential need was greater than what was required to satisfy commercial need, it can easily be inferred that the dominant purpose was residential. Under the circumstances, this Court is of the view that from the tenor of the judgment it is clear that dominant purpose was found to be residential and not commercial. Accordingly, the bar of clause (ii) of the third proviso to Section 21(1) of the U.P. Act No.13 of 1972 was not applicable.
The submission that the landlord being a resident of Allahabad therefore the need to settle the son at Pilibhit, ex facie, was not bonafide, cannot be countenanced. In the instant case, the landlord had set up a plea that his son was unemployed; he wanted to set up a business of supply of medical instruments to various nursing homes/ hospitals operating in Pilibhit; he had the accommodation in dispute for settling in Pilibhit; and, therefore, the accommodation was required. The court below took into consideration that there was nothing to show that the landlord's son was not unemployed accordingly, after taking into consideration the pains of unemployment, the need to settle at Pilibhit was found bonafide. It is well known that people in search of employment leave their motherland and travel from one country to the other. Therefore, if an unemployed person seeks business opportunity in another district of a State, within the country, where he has his self owned accommodation, his need cannot be discarded by holding that he must search for employment in the district where he had been residing.
The other submission of the learned counsel for the petitioner that the court below has not properly considered the suitability of the accommodation for business purpose, cannot be taken as a ground to set aside the order of the court below, because, ultimately, it is landlord's outlook as to how best he can use the accommodation to satisfy his need. Moreover, the need was not set up to open a show room for over-the-counter sale; it was for having a place from where he could conveniently handle business of supply of medical instruments. Therefore, under the circumstances, the width of the approach road and the suitability of the locality for commercial activity is not of such a paramount consideration which may be taken as a ground to discard the need of the landlord.
In so far as the submission that since comparative hardship was found balanced therefore release application ought to have been rejected is concerned, this court is of the view that the finding of the court below has to be understood in the context in which it has been returned. The court below found that both parties would suffer hardship in the sense that the landlord would suffer hardship on rejection of his release prayer and the tenant would suffer hardship in case of eviction therefore to consider a case of part release of the accommodation, within the permissible scope of sub-section (1) of section 21 of the Act, the finding was returned and, thereafter, to balance the respective needs of the parties, taking aid of the power to part release the accommodation as also the principle enshrined in Rule 16(1)(d) of the Rules framed under the UP Act No.13 of 1972, it directed part release of the accommodation. Such an exercise was well within the jurisdiction of the court below and it does not vitiate the order in any manner.
The last submission that only a small portion has been left with the tenant therefore the order is vitiated is also not acceptable because two rooms and a courtyard along with common facilities are there for the tenant.
In view of the discussion made above, this Court finds no good reason to interfere with the order impugned. The petition is dismissed.
Order Date :- 7.2.2017 AKShukla/-